In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Say what you will about John Edwards, he wasn't the cause of Elizabeth's death.

Alex said...Say what you will about John Edwards, he wasn't the cause of Elizabeth's death.

Stress-induced cancer?

LOL, the ultimate irony :)

There has got to be at least some member of the "plaintiff's bar" that will take that on a contingency and sue Silky. I'd love to see Edwards face the ugly side of a personal injury suit with his wife's tape playing for the Jury and the opposing attorney (female of course) doing the tear soaked summation...

Alex said..."'Say what you will about John Edwards, he wasn't the cause of Elizabeth's death.' Stress-induced cancer? He played his part and karma is a BITCH."

Even if he caused the cancer, the statement wouldn't fit the exception unless it was only a statement about the cause of her death. This is an exception that lets courts use a murder victim's identification of the murderer and that sort of thing.

DADvocate said..."While the tape may not be admissable, she may given information in the tape that directed the prosecutors to evidence that is."

That's true.

Beldar said..."Who says it needs to be admissible at trial to still be a "bombshell secret videotape for prosecutors" or "a devastating act of ultimate revenge"?"

It's pretty strongly implied by the language in the article. She's going to "haunt" him and so forth. The NE wants readers to picture the dead woman's talking head accusing him at trial. I certainly agree that she could have hurt him with what's in the video. It could just as well have been a written memo, then. Why a video? What's that drama about?

If you're a mother of young children and about to die, do you want the children's father, who is not alleged to be abusive, in prison when you're gone? Even if you do hate him, I think the answer is an obvious "no."

If one wants to be dramatic, a video from the grave is simply more dramatic than a letter or a voice recording.

I video my will signings by clients (although that's only something I do for friends, not a regular part of my practice). You run through a whole routine to demonstrate then-present mental capacity, intent, and so forth. Those videos make the notion of challenging a will on the standard grounds really silly, so I've never yet had to actually use one.

What if Elizabeth Edwards just wanted to go on record and communicate with prosecutors after she'd no longer have to watch the consequences?

If that were my desire and I had been in her position, a video statement to prosecutors would seem to be a pretty smart move.

Well, it may still be used. If Edwards takes the stand, the prosecution could certainly ask him questions about what he said to Elizabeth and whether he did what she said he did. The prosecution could then use her tape to rebut him and show that he's lying (hint, hint), not for the veracity of the statement.

A little OT but a cardiac surgeon I used to know had all his consent interviews with patients videotaped. In spite of this, he had patients sue alleging some complication wasn't explained. The tape pretty much stopped that.

Also, I taped all my laparoscopic surgeries, mostly gallbladders. I kept the tapes for a month then offered them to patients if they wanted them. About half wanted the tape.

One first grader took his tape of his laparoscopic appendectomy to school to share. That was very early in the whole "band aid" surgery transition and made a bit of a sensation at the time. I think video is a lot more powerful than a document.

Do we have to give up on any argument that Elizabeth's justified bitter unforgiveness of Rielle and her little Johnny was a proximate cause of her cancer death? I say let the Jury hear the videotape and do their duty as finders of the facts. No Doctors know what causes one cancer to spread out of control of an immune system, the radiation treatments and the Chemo and another one to go away.

I guess I'll be Mr. Contrarian. If this story is true then I have to say I find Liz Edwards' behavior pretty contemptible.

She could have done the right thing while she was alive. She didn't; she waited until she was dead and no longer able to enjoy the lavish lifestyle derived from her association with him. Only then did she throw Edwards -- the sole remaining parent of her pre-teen kids -- under the bus.

I dislike John Edwards and I'm as vulnerable to schadenfreude as the next guy. But this rubs me the wrong way.

Carol said : "I thought dying declarations were admissible if at the time there was no way the witness could have lived long enough to testify in court. But I don't know when this action was filed either."

The garden variety dying declaration entails the victim of a gunshot wound bleeding out and stating, "John Smith shot me."

The fact that someone says something on their death bed does not automatically convert the statement into admissible hearsay.

This could have the opposite effect on jurors. It could be shown that Elizabeth was so full of hatred ... not just for John, but for life in general ... that she drove him from her marital bed into the arms of another women. And that it was this hatred that also metastasized into full blown cancer. I don't necessarily buy this line of reasoning, but it could make for a great trial. And how does John respond? Does he pull his punches concerning Elizabeth for the sake of their children, or does he reveal how evil and full of venom she really was?

In Georgia the Dying Declaration is a rule of evidence that overcomes another rule of evidence that we call the Hearsay Exclusion rule. The defense may object all it wants but the trial Judges always make the ruling on what is admissible evidence and are seldom reversed. Let the Jury hear it.

Let us not forget that Elizabeth Edwards (like Hilary Clinton and Huma Weiner) stood by her man in an attempt to have him elected as POTUS. She was a knowing partner in this fraud of the american people. She covered for him the entire way, knowing most of what had happened. It wasn't until the existance of the child put her over the edge, that she came forward with the truth. I have great compassion for her children, for anyone suffering with CA, as a woman living with a patner that has betrayed her trust. This does not render me blind or stupid. She was more than willing to foist that same asshat on all of us. That person would do any and all of the suggestions made here to flip him the long good bird!

This link (h/t/ Corner, with a great headline) has more details. Although it refers to this as "testimony," it also says she recorded the video herself and gave it to a friend. So we're not talking about an oath and a court reporter and a videographer, not even a notary public. It's not "testimony" in the legal sense of that word -- but it might be, I suppose, in the religious sense.

She was a fine lawyer herself and the wife of a trial lawyer. If she'd wanted to make "testimony" that could somehow become evidence admissible in court, I can hardly think this would have been the way she'd have gone about it.

"She could have done the right thing while she was alive. She didn't; she waited until she was dead and no longer able to enjoy the lavish lifestyle derived from her association with him. Only then did she throw Edwards -- the sole remaining parent of her pre-teen kids -- under the bus.

I dislike John Edwards and I'm as vulnerable to schadenfreude as the next guy. But this rubs me the wrong way."

I think her outrage at dying, and him living on happily, put her past reason.

"John might try to tell you that I knew all along about the affair and was ok with it. That's not true; I never knew about it until the day he admitted it in public."

That would only potentially be offered to rebut some claim Edwards might make in his defense, and would be admissible for that purpose.

Even if Edwards didn't take the stand, if his attorneys tried to offer up evidence that he was a loving family man, the prosecution might be able to introduce the tape to rebut that claim. If Edwards' counsel called a family friend, for example, to describe what a wonderful father and husband Edwards had been as long as he had know the family, that could well open the door to allowing the prosecution to rebut the claim using the tape.

If such a tape does exist, I think the fear of opening the door to its admission would probably keep the defense from offering up any sort of character evidence at all.

Issues pertaining to this tape would be researched thoroughly by both sides long before trial, and quashed or not long before a jury was impaneled.

WDOR, I've been thinking about your impeachment argument, but not diligently enough to crack a book or even fire up Westlaw. I'm wondering if there isn't a double-hearsay problem -- a problem that perhaps isn't solved by the "impeachment is a non-hearsay use" rationale -- plus also a near-fatal authentication problem too, which (strictly speaking) is different from the hearsay problem.

Just like a letter, the video itself qualifies as an out-of-court statement, separately from the statements made by Elizabeth Edwards in it. It's not prior testimony. It's not self-authenticating, nor given under oath or otherwise sworn to or notarized. It's not a business record, nor a statement maintained by a government agency pursuant to legal duty, not any other sort of magical "Get Into Evidence Free" document.

Its maker -- the only person who can authenticate the details of its making with first-hand evidence -- is dead.

So what is the video itself impeaching?

If I ask you on the stand, "Have you ever said to anyone that you hate apples?" and you say, "Never," does that mean I can introduce -- without a further witness or authentication or exception -- a video of someone saying you once said you hate apples? I don't think so.

I certainly can't get into evidence an unauthenticated email written by someone who writes that she heard you say you hate apples, can I? So why is it any different just because its a digitized video image instead of a digitized text?

And in any event, I think the earlier comments about the Confrontation Clause would certainly bar any affirmative use. Does anyone know off the top of his/her head whether impeachment usage has been held to not be barred by the Confrontation Clause? (I'm not up on that, since I have an exclusively civil law practice.)

I really don't care if the tapes are admissible or not. When they get released (and they will) the media will have to report on the story. Then we can remind them at length how they hid the original story for months.

So sayeth Khan in Star Trek II: The Wrath of Khan. But me, personally, I never bought into that idea. I say done right and fully exacted, revenge is much more satisfying when contemporaneous with the initial insult and in the heat of the moment. Cold is fine and better than none at all, but it can be so diffused as to seem unrelated.

17-year-old girl began following Weiner after visit to Washington, D.C.

FoxNews:Sources close the student said the 17-year-old minor followed Weiner on Twitter after seeing him speak during a school trip to Washington on April 1. Weiner direct-messaged the girl back on April 13, the sources said, though it is not clear what other communication the two may have had between or after those dates.

Does anyone remember Julie Jensen, from Kenosha, WI.? She claimed to have been poisoned by her husband, Mark. While I never knew the Jensens, I knew (and at one time worked for) the neighbor who testified that Julie told me she was concerned. Further, said neighbor also used to fish with Mark Jensen. REMEMBER - the "letter from the grave" was allowed as testimony, and convicted Mark.

I can tell you from personal experience, both living in the near proxomity and working in Carol Beach Estates - that it was a little "Peyton Place" indeed. LOTS of stuff going on...

Much as I relish the thought of John Edwards averaging out his carbon footprint in a 6 x 9 cell, this cannot stand. She had the opportunity to make the same charges while living. The fact she chose to do it in death reveals the revenge motive which taints it.

Democrat Anthony Weiner has released the following statement after being informed that Delaware Police have begun a criminal investigation of his relationship with a Delaware girl he met when she was on a school trip to Washington, D.C.

Democrat Anthony Weiner:"Well, she was just seventeen. You know what I mean? And the way she looked was way beyond compare. So, how could I dance with another, after I saw her standing there."

@ Lonetown: I have plenty of fault to find with the late Mrs. Edwards. I don't think having had cancer, nor dying from it, absolved her from her responsibility as an enabler and co-conspirator in the cover-up.

But I do not fault her apparent decision not to face yet another wave of international media humiliation as a price for telling what more she knew.

Jensen turned on whether the defendant had caused Julie to be unavailable to testify in person, thereby "forfeiting" his Sixth Amendment right to demand confrontation of the witness against him.

But the Jensen conviction is going to get reversed as contrary to Crawford and Giles (both Scalia opinions)

In addition, the appellate court decision upholding the conviction essentially conceded that admission of the letter was erroneous (or in the court's weasel word language "we assume that the disputed testimonial evidence was erroneously admitted"), and decided that it was harmless error.

Always interesting to find out what people do for a living, and, in this case, who the shysters are in the crowd.

I esp. appreciated learning something of the law here. 24 years ago, I aced Evidence (American Jurisprudence Award), and, yet would misunderstood this hearsay exception - but it doesn't help that I haven't been in a courtroom in 10 years. It was good hearing from lawyers, like Beldar, who actually apparently do what most think that lawyers do, which is to go to court and act all lawyerly.

Revenant said......Honestly, keep it to the Weiner threads. Or at least wait until there's something interesting to report.

Well it is kinda related to this topic. The Edwards scandal was not reported by the main stream media and they did the same thing with Weiniegate until the force of the internet forced them to cover it.

The only way we are going to find out about these matters is if it is covered by bloggers, the National Enquirer or Brietbart.

The mainstream media and juicebox media only want to peruse Sarah Palin's emails and manufacture polls to tell us she is just not a viable candidate.

BENDER - Thanks for the insight. I am NO lawyer and consider it a "fine art" as such. I looked further- and it is being appealed. What I do know - is that this case has wrecked the man's life. It has also made the life of the neighbor who received the letter VERY difficult. What I am gathering from this - is what I have always suspected and feared - that the law and judges are NOT to be trusted. Just as Judge Sumi made stuff up on the spot - so did the justices (?) in allowing the letter --- GOVERNMENT IS CORRUPT TO THE CORE. RESIST.

It was clear throughout the campaign what a piece of work Elizabeth Edwards was for anyone who was paying attention (e.g. her treatment of the old man whose farm was next to their estate, and her decision to bring in Amanda Marcotte to handle new media for the campaign).

But this act of revenge has done the near impossible for me: for once, I actually have some sympathy for that sleazebag Johnathan.

I met Elizabeth Edwards a couple of times--she lived a couple of doors down from my wife--and thought she was actually a very nice person.

Granted, I didn't have to live with her or deal with her on a daily basis, but she certainly presented herself as a nice human being. She also clearly cared for her kids and--too much, too late--her husband.

My wife, who saw her more often than I, thought she was a nice person, too, excepting the politics.

If Elizabeth were alive, and she took the stand, and said, "John never confessed to me that he had an affair until the Inquirer story ran," then someone might offer the tape -- IF they could authenticate it (e.g., by compelling her to testify about how she made it and so forth) -- to impeach her if on the video she'd said "John confessed to me that he had an affair long before the Inquirer story ran."

But without Elizabeth, I don't think the video comes in. At least I'm not persuaded yet that it could, even apart from Confrontation Clause issues.

Actually, the way you have to do that drill is this with Elizabeth on the stand:

A: [blah-blah] ... and that's because John never told me he was having an affair until the Inquirer broke the story.

Q: That's your testimony today, that John never told you he was having an affair until the Inquirer broke the story?

A: Yes, that's my story.

Q: Have you ever made a statement contrary to that before, where you said instead -- opposite to what you've said here in court -- that John told you about the affair months before the Inquirer broke the story?

At this point, if she ADMITS the prior inconsistent statement -- "Oh, well, yes, I said that on a videotape, but I was lying and that was just out of spite" -- then the video is no longer relevant even for impeachment. Only if she denies having ever made a prior inconsistent statement can you then authenticate and impeach her -- while she's on the stand or after she's off -- with the video.

Well now, John Edwards, like Arnold Schwarzeneger, Donald Trump or (IMF) DSK is an alpha male. Currently women are raging against that which they love to hate. An Alpha male will have many lovers and often father many children. Betas (male) often are the providers. Here is an Alpha male , whose wife is HOT HOT HOT!

There are lots of things on this tape which may be terribly useful to prosecutors, or which might be very damning to John Edwards, that don't consist of her recounting for the video statements John had made in conversations with her.

How about, "I found sex toys in his suitcase when he came home, and they weren't anything he'd ever used with me," for example? (Pure hypo.) Then it's a straight-forward hearsay case: If she were in court, she could clearly testify from personal knowledge, with no out-of-court statements involved, about what she personally found in John Edwards' suitcase.

But the video is still an out-of-court statement. It can't be used to prove that she found sex toys in John Edwards' suitcase because that would be a hearsay use of the statement in the tape (even if you don't count the tape separately as a statement of its own). Even if you could authenticate the tape with ribbons and notary seals and sworn representations attached to it, it would still be hearsay.

And it wouldn't qualify as the dying declaration exception either, for the reasons Prof. Althouse started out with.

Edutcher said "Make no mistake, the Edwardses and Clintons were carbon copies of each other."

Brings it right back to the topic of S.E.X. Hillary Clinton is ... well... unsexual, at best, for a man. She's right up there with...Ellen. E.E. - not so hot and aging. It happens. Men become fine with age, women, not so much.

Agree all interesting thoughts. The dynamics of these pairings and their relationships are quite telling...the music plays and they dance, instantly both know the steps. Does it matter who leads and who follows..wasn't it Ginger that said she did everything Fred did, backwards and in heels. Wanting equality and getting it, means splitting debts as well as assets.

I'm reminded of Leona leaving all her fortune to her dog. It made her look bad and pathetic. To live a long life and at the end you have only been able to bond with a dog. That doesn't speak to badness of her relatives but to the prickliness of her soul.....Edwards was a wronged woman, but fate treated her much worse than her husband. She could have left her children with some other legacy than bitterness.

If you're a mother of young children and about to die, do you want the children's father, who is not alleged to be abusive, in prison when you're gone? Even if you do hate him, I think the answer is an obvious "no."

I don't know what universe you live in, but there are plenty of ex-wives who hate their ex-husbands so much they would rather their children not have a father at all. They conduct themsevles in such a way that "normal" relations betweent the children and the dad are near impossible. Why so many of these women choose to behave like dementors is beyond me. You can ask my ex-wife.

It may be there are some men who act this way, but my suspicion is that women carry grudges much more viciously than men, and they are disproportionately represented in this sort of behavior.

I have read little lately to make me think well of Elizabeth Edwards. She believed she was smarter than John, and was arrogant and really obnoxious to work with. With men like Edwards their philandering that makes the news are probably rarely the first: I doubt that Elizabeth didn't know about others. She wanted to be First Lady badly enough that she was willing to over look this. That makes her an accomplice, not a victim. Now she is soiling things the children. Piss on her.

Would the general knowledge that a crime was committed render anything done under a resulting investigation inadmissible? They don't give specifics (in the article) but if it was about something prosecutors didn't even know was done it is still all out if they start an investigation and find their own evidence?

I'm just going to say, that’s a very broad brush. Many legitimate convictions, of politicians, start as hearsay under that standard (even if the people making the initial charge are still alive)… ergo; with that standard, even after the smoke leads to fire; it’s still the result of hearsay.

Beldar... it's been a long time since evidence, and I don't feel like digging out my own code at the moment, but what's your thought on this scenario:

For whatever insane reason, Edwards takes the stand and testifies that he had told Elizabeth about the affair, and she had condoned it because of her illness, and that she only got upset with him when she discovered the child was his.

On the tape, however, Elizabeth says that she never condoned the affair and had been upset with him about it since the news first broke.

Would the tape then be admissible to rebut Edwards' claim about Elizabeth's state of mind toward him? "Mr. Edwards, you say Elizabeth knew about the affair all along and condoned it. Let's watch this tape ... Now, can you explain why she said the exact opposite 6 days before she died?

Start with authentication: Who is the witness on the witness stand when the video is offered into evidence? Who proves it up, lays a predicate for its admission? The friend to whom Elizabeth gave the video? She wasn't there when it was made, knows not when it was made or by whom, and can do nothing but tell us what Elizabeth Edwards said about it, which -- coming from the friend's mouth -- is inadmissible hearsay.

Next consider relevance: John Edwards is being prosecuted for primarily for election law violations and conspiracy to commit them. I can't see why the statements from Elizabeth that you hypothesize, or those issues in general, could be relevant to that prosecution. On the other hand, its potential improper inflammatory and prejudicial value is massive. So I'm not sure why the judge bothers to listen to arguments about irrelevant, unauthenticated statements in a video to decide if they are or aren't hearsay.

But assume you get past relevance and authentication. Somehow.

You still have a double-hearsay problem. If Elizabeth were alive, then she could testify on this subject from her own personal knowledge if she were called as an witness by the prosecution to controvert John Edwards' testimony (in your hypothetical) that she condoned the affair. No hearsay problem there, and she's subject to cross-examination and present, so no Confrontation Clause problem either.

But she's dead. You're literally trying to permit a dead woman's statements as if they were testimony. The statements came from out of court. They're being offered to prove the truth of the matter she's asserting in those statements, i.e., that she never condoned the affair.

Now that's controverting evidence that's contrary to John Edwards' hypothesized testimony, but it's not "impeachment" evidence. Impeachment is evidence whose probative value is specifically to undercut another witness' credibility, not just any evidence that is contrary to something another witness has said. If the concept of "impeachment" is that broad, then the impeachment exception swallows the hearsay prohibition entirely!

Let's change your hypothetical to at least fix the relevance problem: Suppose Elizabeth says on the video, "I was John's co-conspirator. We planned together exactly how he and I together would persuade Bunny and Baron to make these big 'gifts' to Hunter, and we absolutely knew they were expenditures on behalf of the campaign that we had a duty to report and that exceeded the individual contribution caps, but we actively planned how to conceal the 'gifts' so no one would ever find out about them."

Then (assuming you had the requisite independent evidence of a conspiracy) you could probably overcome the relevance problem, at least.

But it's still hearsay. If she were in court to say these things, they would probably come in. But she's not, and her statements in the video were made out of court and they're being offered to prove the truth of what's in them. And I don't think dying declaration nor any other exception saves it.

And that's before you get to the Confrontation Clause issues.

So I'm still having a really, really hard time imagining any scenario or any way this video ends up coming into evidence in any court other than the court of public opinion.

@ RC: Under Fed. R. Evid. 1101(e), the federal rules of evidence, other than rules regarding privileges, don't apply to sentencing proceedings. So maybe, if something on the tape somehow related to one of the factors that the judge could consider for purposes of enhancement or mitigation.

Without knowing more, it's difficult to say, but one possibility is that Elizabeth's testimony would be admissible as a declaration against interest, under FRE 804(b)(3), because she implicates herself in the coverup.

As an attorney, I can say with near certainty the following, in regards to this story: 1) bless her soul, Ms. Edwards' testimony is probably inadmissible as hearsay, in court; 2) outside of court, her testimony is a barbed wire, wide girthed dildo up this phony's arse.

As a resident of Raleigh, NC I've had to deal with the local media's worship of EE. The Raleigh News & Observer in particular has been the house organ of the NC Democratic party for 100 years. Just like Elizabeth, they covered John's backside up until it became clear he had no future viability as a candidate.

I agree with the other posters. She was just as bad as he is and she's just angry that he's going to have the last word. If she can't haunt him in life, maybe she'll haunt him from the grave. Think Blithe Sprit but without the Blithe part.

Elizabeth Edwards has a younger brother and sister and her dauwhene Cate is 28 or 29. The younger children aren't going to the orphanage if Silky goes to jail, so stop with the vilification of her as an uncaring, irrational mother. It reeks of sexism. John certainly wasn't considering the effect on them when he bedded down with Ms. Druck.

If I were on a jury it wouldn't be hard at all to persuade me that Edwards' affair contributed to advancing his wife's cancer through stress and her emotional state. I'm just saying, you wouldn't want that in front of a jury.

Granted, I didn't have to live with her or deal with her on a daily basis, but she certainly presented herself as a nice human being. She also clearly cared for her kids and--too much, too late--her husband.houston personal injury attorney